Legal development

Immigration and employment considerations for a mobile workforce

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    The last two years have without a doubt transformed how, when and where people work. With the world opening up, the impact of the UK’s exit from the EU is becoming more apparent for our clients, who are now feeling the effects of the end of freedom of movement.

    Our clients are grappling with what this means for both attracting talent from abroad and also for sending their staff to work elsewhere in the world.

    Coupled with an increase in staff asking to work remotely or in a hybrid manner, quite often from another country, the issue of cross border working and immigration is in fact becoming a daily discussion.

    In this article, we consider the key employment and immigration issues for our private capital clients.

    Surely things haven't changed that much?

    These issues are not wholly new. However as a result of our exit from the EU, the considerations that once applied to recruiting a foreign candidate from the US or Japan for example, or sending staff to work outside Europe, now also apply to EEA nationals and countries. In practice this means that businesses are facing extra costs and time in ensuring that the various factors, such as immigration, employment, tax and regulatory requirements have been adequately addressed.

    Is a visa necessary?

    It depends!

    The end of freedom of movement means that immigration restrictions apply when UK businesses recruit EEA nationals (who weren't in the UK pre-Brexit) to fill a UK role and when UK nationals are sent to work in Europe. These restrictions can also catch business visitors travelling between the UK and Europe.

    In many instances a candidate coming from France or Spain for example, will need to be sponsored by the UK business where they want to live and work for that business in the UK. This process requires that the business holds a licence to sponsor and then the individual must obtain a visa linked to that licence. There are a variety of routes into the UK, but nearly all of these are tied to this process of licence and sponsorship, neither of which can be done quickly (the average licence application takes 8 weeks and out of country visa applications as at publication should take 3 weeks). The process is prescriptive, with salary thresholds, skills requirements and in many instances English language skills having to be evidenced.

    Sponsorship comes at a cost; there are application fees (sponsor licence costs and standard visa application fees), the immigration skills charge (payable by the business) for most Skilled Workers and the NHS surcharge (payable by the candidate per year of the visa).

    Although the system is designed to allow businesses to run this process without legal assistance, getting it wrong can expose the business to refusals, penalties and delays. It also requires the business to keep up with the changes which are often implemented with little to no prior notice.

    Equally, arranging for a UK national to work in a European country (for example on secondment or as part of a hybrid working arrangement) will trigger local immigration law considerations, which (depending on the country) can be just as prescriptive, if not more so, than the UK regime.

    For those looking to simply visit the UK (or for UK nationals to travel to Europe) on business, there is an equally rigid regime in place, with time limits, strict restrictions on permitted activities and receipt of payments imposed by the immigration authorities – sometimes requiring a visa to be applied for in advance. Ensuring that an individual is aware of these restrictions (as well as the business) and is prepared to provide evidence and answer questions at a country’s border is an area that many of our clients are now focusing on as travel opens up.

    For more information on the routes for global mobility, please see our client briefing here.

    It isn't just immigration…

    The immigration considerations for a mobile workforce are part of a much bigger puzzle which we are helping our clients navigate. Other areas include:

    • Employment law: Depending on where the individual works, local employment laws may apply (notwithstanding that their employment contract may contain a governing law provision under English law). The question of which local employment laws may apply are jurisdictionally specific and are often linked to the length of time spent in that country. However, they could impact issues such as minimum pay, working hours and family leave rights. In addition, if it is not possible for certain benefits to continue (such as pension entitlements, permanent health insurance and private medical insurance), the contractual implications must be considered and, if necessary, the business may need to consult with the individual about any changes to their employment contract.
    • Tax: This is likely to be a key issue for both the business and the individual. Will remote working in Italy for example, create an establishment if there isn’t an Italian office already? Have income tax and social security arrangements been addressed? What notifications may need to be made to the relevant tax authorities?
    • Practical implications: Businesses will also need to consider who will pick up the cost of the individual’s visa (and likely dependants who come with the candidate); whether the individual needs to take detailed accounting advice to protect their underlying benefits (such as social security) built up in their home nation; and whether that individual will want to work remotely from their home nation for extended periods (for example when visiting family during the summer). There are other ancillary considerations, such as data privacy and regulatory requirements that will also come into play.

    Planning is key

    Now that the UK has left Europe, immigration and employment issues will need to be considered every time a business plans to recruit or to move talent cross border. Businesses should ensure that they are aware of the above considerations and have the correct processes in place so that they are able to move quickly to implement and support their mobile workforce needs.

    Authors: Liz Parkin, Senior Associate; and Crowley Woodford, Partner

    The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
    Readers should take legal advice before applying it to specific issues or transactions.

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